How to Guarantee U.S. Citizenship after the Plebiscite

Posted June 1, 2017

The ballot for the June 11th status referendum in Puerto Rico originally informed voters that future U.S. citizenship was guaranteed only under statehood.

The Department of Justice disapproved this wording. In the Department’s view, the status quo — Puerto Rico is currently an unincorporated territory of the United States — also allows citizenship. Puerto Ricans have been citizens of the United States for a century under the territorial status. U.S. Deputy Attorney General Dana Boente went so far as to tweet, “PR is an integral part of the US. Nothing has or will change about our view on this.” (The tweet has since been deleted from his Twitter account.)

But does territorial status guarantee citizenship in the future, as statehood would?

And is guaranteed U.S. citizenship possible if Puerto Rico chooses independence?

It’s up to the U.S. government. Congress decides, and according to a federal advisory to Congress, the U.S. Constitution cannot “restrain Congress’ discretion in legislative about the citizenship status of Puerto Rico.”

When Congress needs research done, it turns to the Congressional Research Service (CRS). This is what Senator Bennet Johnston (D-LA) did in 1989 when he wanted to know if there were limits on Congressional decisionmaking power with regard to the citizenship status of Puerto Ricans. In other words, does Congress have the power to guarantee U.S. citizenship to the people of Puerto Rico whether the island is a territory, a state, or an independent nation?

In its 5-page analysis, CRS concludes that Puerto Ricans living in one of the 50 States would continue to be citizens, but that U.S. citizenship for residents of Puerto Rico would only be covered by the U.S. Constitution if Puerto Rico becomes a State.

In other words, Congress cannot change citizenship for residents of States, but has free reign over Puerto Rico’s residents. Citizenship is guaranteed by the U.S. Constitution only for people born or naturalized in a State. Congress has the power to both give and take away the grant of U.S. citizenship to people in Puerto Rico. After all, it was Congress that granted citizenship to Puerto Ricans in a 1917 statute, so it’s also intuitive that Congress has the authority to change this law, and take away citizenship in the U.S. territory – unless the island takes advantage of protections under the U.S. Constitution, currently available only to states.

Afroyim vs. Rusk (1967) decided that Congress generally couldn’t take away a U.S. citizen’s citizenship against their will. However, CRS concludes that “Afroyim is inapplicable in the instance of Puerto Rico.” Legal scholar Howard Hills has argued that the very act of choosing independence and becoming a citizen of a new nation would be evidence of an intention to change allegiance to a new sovereign, in which case a removal of that citizenship would not be against the will of the former citizen.

Rogers vs. Bellei (1971) held that an individual who was born outside of the United States but obtained U.S. citizenship through a parent, may lose that citizenship for failure to fulfill the U.S. residence requirement. (This requirement – which would also apply to a sovereign Puerto Rico – calls for a U.S. citizen born abroad to live for five years continuously in the U.S. between the ages of 14 and 28.) The Court also established that loss of citizenship is acceptable as long as it is reasonable and not arbitrary – a relatively lax legal standard that should put any Puerto Rican who values his or her continued U.S. citizenship on notice.

Reminding the reader of the Insular Cases, which decided that the U.S. Constitution doesn’t apply entirely to unincorporated territories like Puerto Rico, the CRS further confirmed that Puerto Rico belongs to the United States but is not in the United States. “Whatever its exact status and relationship to the United States,” CRS cautioned, “Puerto Rico is not itself in the United States.” The 14th amendment, according to CRS, therefore doesn’t apply to people born in Puerto Rico. (In 2016, the Supreme Court confirmed in Tuaua v. U.S. that the Constitution’s 14th amendment does not apply to people born in a U.S. territory.)

Some scholars believe that “Puerto Rican U.S. citizenship is permanent and irreversible,” but the Congressional Research Service has long supported the claim that only statehood will actually guarantee U.S. citizenship for the people of Puerto Rico with the weight of the Constitution. The Justice Department can point out that Congress is not likely to take away the citizenship of Puerto Rico’s residents imminently if it were to remain a U.S. territory, and they are probably right. (The Department was careful not to support or promise U.S. citizenship in a sovereign Puerto Rico – which is a far more dubious claim.) But that is not the same as a Constitutional guarantee, and Puerto Ricans who value their U.S. citizenship are on notice.